Citation Nr: 1821247
Decision Date: 04/11/18 Archive Date: 04/19/18
DOCKET NO. 14-23 793 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina
THE ISSUE
Entitlement to service connection for diabetes mellitus, type 2, (diabetes), claimed as due to exposure to herbicide agents.
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
Kate Sosna, Associate Counsel
INTRODUCTION
The Veteran had active duty service from July 1966 to April 1968.
This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2012 by a Department of Veterans Affairs (VA) Regional Office (RO).
In November 2016, the Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO. A hearing transcript has been associated with the record on appeal.
FINDINGS OF FACT
1. The Veteran did not serve in the Republic of Vietnam, in one of the units designated by the Department of Defense as having served in or near the Korean demilitarized zone (DMZ), or the perimeters of Thailand military bases, nor did he regularly and repeatedly operate, maintain, or serve onboard C-123 aircraft, and, thus, he is not presumed to have been exposed to herbicide agents.
2. The evidence of record does not competently and credibly establish that the Veteran was exposed to herbicides as defined by VA regulations while stationed in Korea.
3. Diabetes is not shown to be causally or etiologically related to any disease, injury, or incident in service, and did not manifest within one year of the Veteran's discharge from service.
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CONCLUSION OF LAW
The criteria for establishing service connection for diabetes have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Preliminary Matters
The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).
Further, neither the Veteran nor his representative has alleged any deficiency with respect to VA's duties to notify or assist. See Scott, supra (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).
II. Analysis
The Veteran asserts that his currently diagnosed diabetes is the result of exposure to herbicide agents while serving in Korea.
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service or when evidence establishes a disease diagnosed after discharge was incurred in service. 38 U.S.C. § 1110; 38 C.F.R.
§ 3.303. Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996).
Additionally, for veterans who served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities (including diabetes) are presumed to have been incurred in service if (a) manifest to compensable degree within one year of discharge from service; (b) there is evidence of the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and present manifestations of the same chronic disease; or (c) when a chronic disease is not present during service, evidence of continuity of symptomatology. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).
Additionally, the law provides a presumption of service connection for certain diseases (including diabetes) associated with exposure to herbicide agents, and that become manifest within a specified time period, even if there is no record of evidence of such disease during the period of service. For purposes of the presumption, "herbicide agents" are 2,4-D, 2,4,5-T, and its contaminant TCDD, cacodylic acid, and picloram. 38 C.F.R. § 3.307(a)(6)(i). Veterans who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, or in or near the Korean DMZ between April 1, 1968, and August 31, 1971, are presumed to have been exposed to herbicide agents. See 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). This presumption also extends to individuals who performed service in the Air Force or Air Force Reserve under circumstances which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era. Id. Finally, Compensation Service has determined that a special consideration of herbicide exposure on a factual basis should be extended to veterans whose duties placed them on or near the perimeters of Thailand military bases during the Vietnam era.
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.R.F. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
As an initial matter, the Board notes that the Veteran does not allege, nor does the record reflect, that he served in the Republic of Vietnam, that he traveled to the DMZ, that he first manifested diabetes during service or within one year of his discharge from service, or that his diabetes is otherwise related to his active duty service on a direct basis. Rather, the Veteran's sole claim is that his diabetes is related to his alleged exposure to herbicide agents during service at Camp Grant, Inchon, South Korea, located approximately 27 miles from the DMZ. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (2008) (claims which have no support in the record need not be considered by the Board as the Board is not obligated to consider "all possible" substantive theories of recovery).
While the record confirms the Veteran was diagnosed with diabetes in approximately 2001 (see October 2001 private treatment record from Dr. S.S. and November 2016 hearing transcript), the Board finds that the most probative evidence of record fails to establish his exposure to herbicide agents during his military service; his claim must therefore be denied.
In this regard, the evidence of record does show that the Veteran was serving in Korea in April 1968. Nevertheless, his unit, Company A, 728th Military Police Battalion) has not been recognized by the Department of Defense as having served in or near the Korean DMZ. See VBA Manual M21-1, IV.ii.1.H.4.b. Indeed, in August 2012, the Defense Personnel Records Information Retrieval System reported that historical records showed the Veteran's Unit (Company A, 728th Military Police Battalion) was stationed approximately 27 miles from the DMZ and that there was no documentation of the use, storage, spraying, or transportation of herbicides in that location. Furthermore, the Unit history does not mention or document any specific duties performed by the Unit members along the DMZ. Notably, at the November 2016 DRO hearing, the Veteran himself reported he was not sure if he had ever physically gone to the DMZ and he instead only reported remembering planes flying overhead. Furthermore, the Veteran does not contend, and the evidence does not show, that he served in Vietnam, or regularly and repeatedly operated, maintained, or served onboard C-123 aircraft. Therefore, he is not presumed to have been exposed to herbicide agents.
In light of the foregoing, the Board concludes that there is no credible evidence that the Veteran was exposed to herbicide agents during his service. The Board recognizes the Veteran's genuine belief that he was exposed to herbicide agents during his military service; however, he is not competent to identify the particular chemicals to which he was exposed. Further, the Veteran has submitted no evidence beyond his own lay statements demonstrating that he was exposed to herbicides as contemplated by the governing regulation during his active service. In light of these facts, the Board concludes that there is no competent or credible evidence that the Veteran was exposed to herbicides while stationed in Korea. Thus, service connection for diabetes is not warranted as due to claimed exposure to herbicide agents during service.
The Board notes that the Veteran has submitted an opinion from his VA clinician that he or she was unable to determine whether the Veteran's diabetes was related to his service and that the Veteran has not been afforded a VA examination in this appeal. Importantly, the Veteran's sole theory of entitlement is that his diabetes was caused by exposure to herbicide agents and such has not been established; as such an examination and opinion are not necessary in this case. Moreover, the Veteran's service treatment records are silent as to any complaints or symptoms associated with diabetes. Furthermore, the record does not otherwise contain any competent evidence suggesting a causal relationship between such disorders and his military service. In this regard, the United States Court of Appeals for Veterans Claims has held that VA is not required to provide a medical examination when there is no credible evidence of an event, injury, or disease in service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Additionally, a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). For all of these reasons, the evidence does not indicate that the Veteran's diabetes may be related to active service such as to require an examination, even under the low threshold of McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).
Ultimately, service connection is not warranted for diabetes. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim. As such, that doctrine is not applicable in the instant appeal and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra.
ORDER
Service connection for diabetes is denied.
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D. JOHNSON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs